Liberal and conservative interest groups see Supreme Court appointments as a president’s most important domestic legacy. So now they are in their quadrennial lather about how Republican appointees could swing the closely balanced Court decisively to the right, and how Democratic appointees could swing it to the left, especially on big social issues that include abortion rights, affirmative action, gay rights, and religion.
Many Court-watchers confidently predicted four years ago, and again last year, that President Bush would name one or more new justices by fall 2004. But all nine of the justices have stuck around. None seems to have serious health problems, and none has given clear signals of impending retirement. They are, of course, not getting any younger. Liberal Justice John Paul Stevens is 84; conservative Chief Justice William Rehnquist is 80; moderate swing-voting Justice Sandra Day O’Connor is 74; and five of their six other colleagues are over 65. (The ninth is 56-year-old Clarence Thomas.) In addition, nobody has left the Court for more than a decade, the longest such period since the 1820s.
Liberals warn that a Bush Court would likely overrule Roe v. Wade, outlaw affirmative-action preferences, and inject religion into schools and public events. In The New York Times on October 18, "editorial observer" Adam Cohen wrote: "Abortion might be a crime in most states. Gay people could be thrown in prison for having sex in their homes. States might be free to become mini-theocracies."
Meanwhile, conservatives say that a Kerry Court might legalize gay marriage, approve late-term abortion techniques close to infanticide, strike "under God" from the Pledge of Allegiance, exile religion completely from the public square, and lock in a pervasive regime of racial quotas forever.
Such dramatic turns are theoretically possible if a President Kerry replaces any of the Court’s three solid conservatives with a liberal, or if a re-elected President Bush replaces any two of the other six (four liberals, two moderates) with people as conservative as his model justices, Antonin Scalia and Clarence Thomas. The more likely scenario, however, is that we’ll get a Hispanic justice — because both Bush and Kerry see a long-range political payoff in such a move — and a less dramatic change in the Court’s direction.
The main reasons for betting that the Court will continue steering a generally centrist course protecting the status quo are the reluctance of most jurists to overturn major precedents and the unlikelihood that either Bush or Kerry could get a "balance-tipping" crusader through the Senate. Given the current justices’ 6-3 vote in 1992 to reaffirm Roe v. Wade, it’s unlikely that Bush could get the Senate to confirm two anti-Roe nominees to fill vacancies left by two pro-Roe justices.
Senate Democrats have stopped 10 of Bush’s lower-court nominees with filibusters. That strategy, never before used on a sustained basis to block votes on judicial nominees supported by a Senate majority, has set a precedent: It now takes 60 votes to confirm controversial judicial nominees, at least for lower courts. To stop any controversial Supreme Court nomination, the opposition party will surely launch a filibuster. The question is whether the glare of the media spotlight would spur a public backlash strong enough to break a filibuster. The answer might depend in part on how well the nominee appeared in televised hearings. Other things equal, a nominee seen as "the first Hispanic" would be the hardest to oppose.
(Whether we have already had the first Hispanic justice depends on the much-debated question of whether Benjamin Cardozo, who joined the Court in 1932, should be classified as Hispanic; he was of Portuguese-Jewish descent.)
It’s unclear whether Bush, who will never face another election, would care enough about pleasing his conservative base during a second term to put himself through such a distraction from the rest of his agenda. And it seems probable that Kerry would pick relatively moderate-to-liberal nominees, as did President Clinton, to avoid a fight.
For these reasons, confirmable centrists have come to figure more prominently in the Supreme Court name game.
Listing possible Supreme Court nominees is largely guesswork, especially in the case of Kerry, who, unlike Bush, has never picked judges and who (according to people in his camp) has given little thought to the matter. But lots of guesswork is going on. Although there is some talk that a political figure of national stature — someone like former Chief Justice Earl Warren, who had been a popular governor of California — is needed, the most-discussed prospects are mostly federal appeals court judges, law professors, and current or former government lawyers.
Possible Kerry Nominees Jose A. Cabranes, New Haven, Conn., U.S. Court of Appeals for the 2nd Circuit, 63. The nation’s most prominent Hispanic judge, he is respected by fellow judges and practicing lawyers, has long been touted as a potential Supreme Court nominee, and would probably get a close look from the Kerry team. Cabranes, who was born in Puerto Rico, had practiced law in New York and was general counsel of Yale University before President Carter made him a federal district judge in 1979. Clinton elevated him to the 2nd Circuit in 1994. Pluses: Hispanic ethnicity; scholarly excellence; moderate enough to have been considered by the first Bush White House and easily confirmed for current position. Minuses: lack of enthusiasm among left-leaning Latino leaders and Democrats; his trenchant criticisms of harsh federal sentencing laws, which might spur Republican opposition; over 60.
Sonia Sotomayor, Manhattan, U.S. Court of Appeals for the 2nd Circuit, 50. Perhaps the second-most-prominent Hispanic judge, especially in the Northeast, she is also of Puerto Rican descent, is also exceptionally smart, and is more liberal than Cabranes. After growing up in a Bronx housing project, Sotomayor graduated from Princeton University, summa cum laude, and Yale Law School, where she was on the law review. She worked in New York as an assistant district attorney for five years and later became a commercial litigator. Sotomayor, chosen for a district court seat by the late Sen. Daniel Patrick Moynihan, D-N.Y., was appointed by the first President Bush in 1992. Clinton elevated her to the 2nd Circuit in 1998; she won confirmation after a long stall by conservative Republicans who feared that she might become an unstoppable candidate for a Supreme Court vacancy. Pluses: Hispanic ethnicity; up-from-modest-origins background; stellar academic record; strong support from liberal and Latino groups. Minuses: painted by some conservatives as a liberal judicial activist.
Sandra L. Lynch, Boston, U.S. Court of Appeals for the 1st Circuit, 58. She is known as a smart, hardworking jurist somewhere on the moderate-to-liberal spectrum and as a favorite of Sen. Edward Kennedy, D-Mass., whose recommendations will get a respectful hearing from Kerry. Lynch was born in Illinois but has been in Massachusetts for college (Wellesley), law school (Boston University), and most of her career as an assistant state attorney general, a general counsel of the state Education Department, and a litigator at a big corporate firm. She was also a bar association leader and was active in Planned Parenthood and in promoting Boston’s highly controversial court-ordered program of school desegregation through busing. Clinton appointed her in 1995, largely on the basis of Kennedy’s recommendation, to fill the 1st Circuit seat vacated by Stephen Breyer upon his elevation to the Supreme Court. Pluses: Kennedy connection; respect of fellow judges; a record that is liberal enough to be acceptable to the Left and moderate enough to have won her easy confirmation by a Republican Senate. Minuses: "Massachusetts liberal" label, which Senate Republicans — eager for revenge after the Democratic filibusters led by Kennedy (among others) that stopped 10 Bush judicial nominees — would seek to hang around her neck.
Merrick B. Garland, Washington, D.C., U.S. Court of Appeals for the D.C. Circuit, 52. After graduating summa cum laude from Harvard College and magna cum laude from Harvard Law School, where he was on the law review, he went on to clerk for Justice William Brennan, become a special assistant to Attorney General Benjamin Civiletti, and then make partner in a big Washington law firm — only to leave to gain prosecutorial experience in a relatively modest position as an assistant U.S. attorney. From there, Garland went to headquarters, serving first in the Criminal Division and then as the top aide to Clinton’s Deputy Attorney General Jamie Gorelick. He handled major cases, including the Oklahoma City bombing investigation. Clinton appointed him to the D.C. Circuit in 1997. Pluses: intellectual stardom; innocuous paper trail; views toward the moderate end of the moderate-to-liberal spectrum. Minuses: unexciting candidate, both to those who long for old-fashioned liberal activism and to those who see any nomination of another white, male judge as a wasted opportunity.
Diane P. Wood, Chicago, U.S. Court of Appeals for the 7th Circuit, 54. Another academic star, she graduated summa cum laude from the University of Texas and magna cum laude from its law school. She then clerked for Justice Harry Blackmun. After a stint at a big Washington law firm, Wood became a professor at the University of Chicago Law School and later served the Clinton administration as deputy chief of the Justice Department’s Antitrust Division. Clinton appointed her to the 7th Circuit in 1995. She is seen as a moderate liberal. Pluses: academic and judicial distinction; easy confirmation by Republican Senate for her current seat; liberal support. Minuses: paper trail that conservatives would portray as too liberal.
David Tatel, Washington, D.C., U.S. Court of Appeals for the D.C. Circuit, 62. A respected former civil-rights lawyer with a big Washington law firm, he headed the Education Department’s Office of Civil Rights under Carter. He was appointed to the bench by Clinton and has strong liberal credentials. A degenerative eye disease blinded him when he was a young man. Pluses: intellectual distinction; respect of fellow judges; support of liberal and civil-rights groups; Republican fear of being pilloried for picking on a disabled person. Minuses: strong conservative opposition; over 60.
Fortunato P. (Pete) Benavides, Austin, Texas, U.S. Court of Appeals for the 5th Circuit, 57. Of Mexican ancestry, he may be the most prominent Hispanic federal judge after Cabranes and Sotomayor, at least among Democrats. Benavides was a private practitioner in Houston before winning a succession of Texas trial and appellate judgeships. Clinton appointed him to the 5th Circuit in 1994. Pluses: strong intellect; respect of fellow judges; impressive bearing; solid judicial record. Minuses: not well known in Washington.
Kathleen Sullivan, Palo Alto, Calif., Stanford University law professor and former dean, 49. A leading constitutional scholar, she is generally known as a strong liberal but showed her independence by strongly opposing the McCain-Feingold campaign finance law as a violation of the First Amendment. Sullivan began her teaching career at Harvard Law School and, like Lynch, has connections to Sen. Kennedy. Pluses: scholarship; deanship at a top law school; strong liberal support; winning manner that would make her a compelling witness in confirmation hearings. Minuses: liberal paper trail that might doom her in the Senate, no matter how well she does in hearings; no judicial experience.
Walter Dellinger, Durham, N.C., a Duke University law professor who also practices with a large corporate firm in Washington, 63. He was an assistant counsel in the Clinton White House and then ran the Justice Department’s two main brain trusts, first as head of the Office of Legal Counsel and then as acting solicitor general. Pluses: scholarly distinction; networking skills; clerkship as young law graduate for Justice Hugo Black; success as appellate litigator since leaving government; moderate-to-liberal record. Minuses: classification by some Republicans as a liberal activist; North Carolina political activities that led his Republican home-state senators (both now gone) to block his confirmation as solicitor general; over 60; no judicial experience.
Seth P. Waxman, Washington, D.C., partner at Wilmer Cutler Pickering Hale & Dorr, 52. One of the top Supreme Court litigators, he succeeded Dellinger as head of the solicitor general’s office from 1997 to 2001, winning the respect of the justices as a straight-shooting advocate. Before that, he served alongside Merrick Garland as a top assistant to Gorelick. Pluses: professional distinction; confirmable. Minuses: not very exciting to liberal groups; no judicial experience.
Barrington D. Parker Jr., New York City, U.S. Court of Appeals for the 2nd Circuit, 58. An unusually well-connected and charming man, he was appointed in 2001 by Bush to make amends for the Senate Republicans’ stalling that had blocked his original nomination by Clinton. He is the son of a federal judge and one of the more prominent black federal appeals court judges. Pluses: African-American ethnicity; easy confirmation for current position; reputation as a relatively moderate judge. Minuses: fairly brief judicial experience and a less-than-stellar resume.
Possible Bush Nominees Alberto R. Gonzales, Washington, D.C., Bush’s White House counsel, 49. The second of eight children of uneducated Mexican-American immigrants, he grew up in Texas in a house without a phone or hot water. He went into the Air Force after high school, won an invitation to the Air Force Academy, and eventually graduated from Rice University and Harvard Law School. After Gonzales had become the first Hispanic partner at a large Houston-based corporate law firm, then-Gov. Bush hired him as his legal counsel in 1995 and appointed him secretary of state in 1997; a Texas Supreme Court justice in 1999; and White House counsel in 2001. He is one of the president’s most trusted advisers and personal favorites. His role in formulating Bush’s sweeping claims of presidential powers — including helping to draft a controversial January 2002 memo arguing that prisoners captured in Afghanistan are unprotected by the Geneva Conventions, and the Justice and Defense Department memos suggesting that the president has the power to order the torture of suspected terrorists — have somewhat dimmed his front-runner status. Pluses: Hispanic ethnicity; probably confirmable because his apparent support of affirmative-action preferences and lack of animus toward Roe v. Wade would blunt liberal opposition. Minuses: concern among conservatives that Gonzales is not one of them and might even move the Court to the left, especially if chosen to replace Rehnquist; reputation as a relatively undistinguished legal mind (which probably won’t matter much in this day and age).
J. Harvie Wilkinson III, Charlottesville, Va., U.S. Court of Appeals for the 4th Circuit, 60. He has been a jack of several trades, as a law clerk for his mentor, Justice Lewis F. Powell Jr., a law professor, a newspaper editor, and a deputy chief of the Reagan Justice Department’s Civil Rights Division. Reagan appointed him to the 4th Circuit in 1984. Wilkinson has written a book criticizing racial preferences as "the most dangerous of policy prescriptions for a multiethnic nation." Pluses: first-rate legal mind; courtly, collegial, unthreatening manner that might make it hard for liberal opponents to demonize him as they did Robert H. Bork. Minuses: seen by many Democrats as a conservative activist; less admired by some conservatives than is his colleague J. Michael Luttig.
J. Michael Luttig, Alexandria, Va., U.S. Court of Appeals for the 4th Circuit, 50. He clerked for then-Judge Antonin Scalia and Chief Justice Warren E. Burger, worked in the White House counsel’s office under Reagan, spent four years at a big corporate law firm, and held important Justice Department positions before the first President Bush appointed him in 1991 to the 4th Circuit, which has become the most conservative of the 12 regional federal courts of appeals. Luttig’s judicial opinions are powerfully reasoned assaults on the positions of liberal judges and other adversaries, sometimes including Wilkinson. He experienced the pain of crime victims in 1994, when a carjacker murdered his father in front of his mother, in Tyler, Texas. Pluses: potent intellect; agreeable personality; reputation among conservatives as perhaps the closest of all candidates to being an intellectual clone of their hero Scalia. Minuses: strong opposition by liberals, who see him as a would-be leader of a constitutional counter-revolution against court precedents.
Samuel A. Alito Jr., Newark, N.J., U.S. Court of Appeals for the 3rd Circuit, 54. He was a federal prosecutor, assistant solicitor general, deputy assistant attorney general, and U.S. attorney for New Jersey before President George H.W. Bush appointed him to the 3rd Circuit in 1990. Pluses: exceptional intellect; conservative jurisprudence admired by the Bush camp. Minuses: strong opposition by liberals, who call him "Scalito."
Larry D. Thompson, Purchase, N.Y., a senior vice president of PepsiCo, 58. Also mentioned prominently as a candidate to replace Attorney General John Ashcroft, the mild-mannered, widely liked Thompson won positive reviews both from the White House and from some Democrats during his two years as deputy attorney general under the far more controversial Ashcroft. He has been U.S. attorney for Georgia and a litigator with a large corporate firm in Atlanta. Thompson has been a critic of racial preferences, although a less passionate one than his close friend Justice Clarence Thomas. Pluses: African-American ethnicity; a paper trail that might be hard for Democrats to attack. Minuses: speculation among liberals that underneath his mild demeanor, he shares many of Thomas’s archconservative views.
Miguel Estrada, Washington, D.C., partner, Gibson, Dunn & Crutcher, 43. A brainy, serious-minded conservative, he was born in Honduras, came to the U.S. at age 17, achieved academic distinction at Columbia University and Harvard Law School, clerked for Justice Anthony Kennedy, and worked as a federal prosecutor and in the solicitor general’s office, where he argued some 15 cases in the Supreme Court. Then he joined the large corporate law firm of which he is now a partner. Bush nominated Estrada in 2001 for the U.S. Court of Appeals for the D.C. Circuit, but Democrats — fearing that Bush might be grooming him for the Supreme Court — stopped his nomination with a filibuster. They painted him (without much evidence) as an extreme conservative, just as Republicans had painted Sotomayor as a liberal activist. The filibuster held, and Estrada withdrew after more than two years. He might have a better chance of getting through the Senate as a Supreme Court nominee, because Democrats could suffer politically if they blocked a Latino from attaining such a prominent position. Pluses: Hispanic ethnicity; widely recognized legal talent; support of some Democrats. Minuses: reputation among liberals as a strong conservative; a resume somewhat less distinguished than those of some other candidates, if only because he is much younger.
John G. Roberts Jr., Washington, D.C., U.S. Court of Appeals for the District of Columbia Circuit, 49. A former clerk for Chief Justice Rehnquist, he served in the Reagan Justice Department and White House counsel’s office and then became an appellate litigator at a large corporate law firm. Roberts served as the principal deputy solicitor general under the first President Bush. He has argued dozens of cases before the Supreme Court, representing clients on both conservative and liberal sides of ideologically charged issues and winning praise from legal luminaries of both political parties as one of the nation’s best appellate advocates. Roberts was originally nominated for the D.C. Circuit in 1992 by the first President Bush, but Democrats stalled his confirmation until after the election, and he stayed in private practice. In 2001, the current President Bush nominated Roberts. Senate Democrats stalled his nomination again, for two years, based on his apparently conservative views, fragments of legal briefs that he had signed, and bitterness over Republican stalling of Clinton nominees for the same court. Roberts was finally confirmed in May 2003. Pluses: professional distinction; admiration of fellow lawyers and judges; likability; reputation as a moderate conservative who would be hard for liberals to stop. Minuses: liberal suspicions that he may be more conservative than his record suggests; relatively brief judicial experience.
Theodore B. Olson, Washington, D.C., partner, Gibson, Dunn & Crutcher, 64. A more senior partner of the same law firm as Estrada, Olson is the go-to appellate litigator for conservatives. After a successful career in Gibson, Dunn’s Los Angeles headquarters, Olson came to Washington with his then-senior partner William French Smith, who became Reagan’s first attorney general. Olson headed the elite Office of Legal Counsel. On returning to Gibson, Dunn, he stayed in the Washington office, building a practice as a leading Supreme Court litigator and a champion of conservative causes, including the (ultimately unsuccessful) effort to get the Supreme Court to outlaw racial preferences in state university admissions. Olson represented George W. Bush in the bitterly disputed Supreme Court litigation that ended in the December 2000 decision effectively making Bush president. Bush then chose Olson as his solicitor general, setting off a difficult Senate confirmation battle in which Democrats attacked Olson for his conservative views and links to dirt-digging about Clinton by the conservative magazine American Spectator. He won confirmation by a 51-47 vote. His wife — lawyer and conservative television pundit Barbara Olson — died on the airliner that terrorists crashed into the Pentagon on September 11, 2001. Olson dealt with his grief by throwing himself into his work. He stayed on as solicitor general until this summer and then returned to Gibson, Dunn. Pluses: hero status among conservatives; personal likability that has won the affection of many liberals; distinguished service in top Justice Department jobs. Minuses: liberal charges of conservative activism; lingering bitterness over American Spectator Clinton-bashing and Bush v. Gore; over 60.
Emilio M. Garza, San Antonio, U.S. Court of Appeals for the 5th Circuit, 57. He was appointed by Reagan to the U.S. District Court and elevated by the first President Bush in 1991 to the 5th Circuit. A former marine, corporate litigator, and Texas state judge, he was considered for the 1991 Supreme Court nomination that ended up going to Clarence Thomas. Pluses: Mexican-American ethnicity; respect among conservatives for ability, judicial philosophy, and meticulousness in following the law. Minuses: reputation among liberals as a probable vote to overrule Roe v. Wade, based on two judicial opinions in which he reluctantly followed the Supreme Court’s abortion precedents but argued that that the justices had been wrong to find an abortion right in the Constitution and that states should be free to restrict abortion.
Janice Rogers Brown, Sacramento, California Supreme Court, 55. One of the Bush judicial nominees who has been stalled by a Democratic filibuster, she is the daughter of an Alabama sharecropper who later joined the Air Force and moved his family to California. Brown put herself through California State University (Sacramento) and the UCLA School of Law, and then worked in the state attorney general’s office. She became Republican Gov. Pete Wilson’s legal affairs secretary in 1991. Wilson put her on an intermediate appellate court in 1995 and made her the California Supreme Court’s first black woman justice in 1996. She is a forceful, sometimes acerbic conservative. In one speech, she called the Supreme Court’s upholding of the New Deal programs — after it first struck them down — as the "Revolution of 1937," and said that the ruling had been a "disaster" marking "the triumph of our socialist revolution." While parting with fellow conservatives by joining liberals in some decisions protecting criminal defendants’ rights, she has accused her colleagues of having "an overactive lawmaking gland." Pluses: African-American ethnicity; powerful, independent intellect; admiration of many conservatives. Minuses: reputation among liberals as a more radical conservative than any current justice; tendency to use rhetoric so strong as to offend some colleagues.